ANDREW M. CUOMO, Attorney General of the State of
New York
By: Glenn C. King, Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

April 21, 2010

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision

Claimants Arthur and Lorraine Merklen seek to recover damages for personal injuries
sustained when their vehicle collided with another vehicle at the intersection of Albany County
Route 1 and State Route 443 in the Town of Berne in Albany County on May 15, 2007. The
liability phase of the trial of this claim was conducted on November 17 and November 18, 2009
in Albany, New York. Claimants presented the testimony of: (1) claimant Arthur Merklen; (2)
claimant Lorraine Merklen; (3) Reed G. Sholtes, Supervisor of the New York State Department
of Transportation (NYSDOT) Traffic Operations Section; (4) NYSDOT Regional Traffic
Engineer Mark Kennedy; and (5) accident reconstruction expert Bradford R. Silver. Defendant
called no witnesses on its case. Numerous photographic, documentary and other exhibits were
received into evidence, including the transcript of the examination before trial (EBT) of Keith
Kodra, the driver of the other vehicle involved in the accident. After listening to the witnesses
testify and observing their demeanor as they did so, and upon consideration of that evidence and
all of the other evidence received at trial and the applicable law, the Court concludes that
defendant is not liable to claimant for the reasons that follow.

FACTS

At approximately 10:15 a.m. on May 15, 2007, claimant Arthur Merklen was driving his
2005 Ford Explorer northbound on Albany County Route 1 ("CR 1"), a two-lane county road, in
the Town of Berne. The weather that day was clear. Claimant Lorraine Merklen, Arthur's wife,
was seated in the front passenger seat.(1) Claimant stopped their vehicle at the stop sign at the
intersection of CR 1 and State Route 443 ("SR 443"), a two-lane State highway, intending to
make a left turn to travel westbound on SR 443. When claimant's vehicle was in the intersection
in the midst of making the left turn, it was struck by a pickup truck being driven by Keith Kodra,
who was traveling eastbound on SR 443.

The CR 1-SR 443 intersection is located in a rural area with a low volume of traffic. The
intersection was controlled by two stop signs, one each for the northbound and southbound lanes
of CR 1, which had been installed by the NYSDOT pursuant to its right-of-way. There were no
stop signs for motorists traveling on SR 443 at the intersection. The stop sign for the northbound
lane of CR 1 was located on the southeast corner of the intersection several feet behind a white
line that was painted on the pavement (a "stop bar"). The stop bar was adjacent and parallel to
the eastbound lane of SR 443. The CR 1-SR 443 intersection is not at a right angle, and vehicles
traveling northbound on CR 1 must make an exaggerated looping left turn onto westbound
SR 443.

At its intersection with SR 443, CR 1 is generally flat and straight, but the topography of
eastbound SR 443 approaching the intersection is more complex. Looking westerly from the
intersection, SR 443 curves to the left while sloping upward to a hill crest approximately 220 feet
from the center of the intersection. At the hill crest, the pavement is approximately nine and a
half feet higher than the pavement at the northbound CR 1 stop bar at the intersection. Beyond
the crest of the hill, SR 443 slopes more gently down to the west. Due to the hill crest, a driver
such as claimant, stopped at the northbound lane of CR 1 at the CR 1-SR 443 intersection, would
have a sight distance(2) of approximately 250-feet for oncoming traffic in the eastbound lane of SR
443, while a driver stopped at the southbound lane of CR 1 at the intersection would have a sight
distance for eastbound traffic of approximately 325 feet. The 250-foot sight distance for
northbound CR 1 motorists observing eastbound SR 443 vehicles was described at trial as being
a "limited sight distance" that would provide motorists with less time to perceive, react and take
evasive action with regard to a potential hazard in the roadway.

The speed limit for SR 443 in the area of the intersection was 55 miles per hour (MPH).
There were three warning signs(3) on eastbound SR 443 located to the west of the intersection.
The first sign - located farthest away from the intersection at approximately 700 feet west of the
intersection - warned of the upcoming intersection. The second warned that the roadway curves
to the right and had a smaller sign below posting an advisory speed limit of 45 MPH for the
curve. The last sign warned of a snowmobile crossing. All three of the warning signs were
located before the roadway slopes upward to the hill crest, at points where the intersection cannot
yet be seen. Further, the hill crest is at the end of the portion of road that curves to the right and
which was the subject of the advisory 45 MPH speed limit.

Claimant testified that when he stopped at the stop sign at the southeast corner of the
intersection, he could not see oncoming eastbound traffic, so he pulled up and stopped at the stop
bar. Claimant testified that he then looked left, right and then left again and saw no traffic
coming from either direction before he pulled out and started to make a left turn on westbound
SR 443. As their vehicle was entering the intersection to make the left turn, Lorraine Merklen
saw a vehicle approaching in the eastbound lane of SR 443 and yelled to claimant "look out"
(T:27).(4) Claimant testified that he attempted to accelerate through the intersection to avoid a
collision, but Kodra's oncoming vehicle collided with claimants' vehicle on the driver's side at
the driver's door. Both claimants testified that their vehicle was in the eastbound lane of SR 443
when it was struck by Kodra's vehicle. Claimant testified that he was looking to the left while he
was negotiating the turn, but that he did not see the Kodra vehicle until just a moment before the
collision. The impact forced claimants' vehicle into the westbound lane of SR 443, and it came
to rest in the northeast corner of the intersection, pointing in a northwesterly direction.

According to his EBT testimony, Kodra was driving his 2006 Chevy 2500 Heavy Duty
pickup truck eastbound on SR 443 at approximately 45 to 47 MPH, hauling a lawn mower on a
trailer. Kodra stated that he first saw claimants' vehicle as it was "rolling" to the stop bar
(Claimant's Exhibit 39, at 22). Kodra believed that claimants' vehicle was going to stop at the
stop bar, so he "just kept going" (id.), although he "let off" the accelerator (id. at 23). Kodra then
noticed claimants' vehicle entering the intersection, so he put his foot on the brakes and steered
out of his lane to avoid the vehicle, but struck claimants' vehicle in the middle of the two-lane
roadway.

The CR 1-SR 443 intersection had previously been identified by NYSDOT as one that
required study. In July 1994, R.D. ("Turk") Albertin, a NYSDOT employee, reported to Tom
Werner, NYSDOT Director of Traffic and Safety, that he had had a "reasonably close call" at
that intersection and he recommended that NYSDOT install vehicle-activated flashing beacons to
warn of approaching vehicles at all limited sight distance intersections (Claimant's Exhibit 34, at
p. 9). However, Albertin's recommendation was rejected by Werner as being problematic since
the absence of a flashing light would indicate that it was safe to enter the intersection, which
could prove catastrophic for motorists if the light bulb burned out or the system failed (id. at
p. 8). Werner, however, requested the Region 1 Traffic Engineering and Safety Group to "look
at the [CR 1-SR 443] intersection . . . to see if anything else can be done to improve conditions
there" (id.).

John Burnett, a NYSDOT Civil Engineer in the Traffic Operations Section, thereafter
conducted a field investigation where he visited the CR 1-SR 443 intersection and made
diagrams of the intersection indicating the curvature of the roadways, the speed limits on the
roadways, the placement of traffic signs, and sight distances for the intersection. The diagrams
noted that there were two yellow warning signs - an intersection-approaching sign and a road
curving to the right with a 45 MPH recommended advisory speed limit - for eastbound motorists
on CR 443 prior to the intersection,(5) as well as an embankment next to a cemetery on the south
side of SR 443 to the immediate west of the intersection. Burnett also compiled an accident
history for the intersection for a period of five years and three months from October 1988
through December 1993.

In an Investigation Report dated November 15, 1994, Burnett noted that motorists
proceeding eastbound on SR 443 "encounter a slight crest vertical curve and horizontal curve to
the right approximately 300' ± before the intersection of CR 1. This alignment restricts the sight
distance available. Also adding to this is an embankment on the south side of the highway" (id.
at p. 2). Burnett concluded that all the required warning signs were in place and in accordance
with the Manual of Uniform Traffic Control Devices (MUTCD)(6) and that there was no cause for
action (id.). In a memorandum to Albertin dated November 16, 1994, William Logan, the
NYSDOT Regional Traffic Engineer, advised Albertin that the field investigation "revealed that
all necessary signing was in place and in accordance with the Department's 'Manual of Uniform
Traffic Control Devices' ", that "accident records did not indicate an accident problem at the
intersection", and that there was "no cause for any action at this time" (id. at p. 1). No further
review or study of the CR 1-SR 443 intersection was done after 1994.

The accident history for the CR 1-SR 443 intersection for the ten-year period of April 1,
1997 to March 31, 2007 indicates that there were six reported accidents involving vehicles that
collided at the intersection.(7) Five of the six accidents involved vehicles that were traveling
eastbound on SR 443 colliding with vehicles that entered the intersection from CR 1. Three of
these accidents involved vehicles that were traveling northbound on CR 1, and two involved
vehicles that were traveling southbound on CR 1.

Reed G. Sholtes, Supervisor of the NYSDOT Traffic Operations Section,(8) testified that
the accident history for the CR 1-SR 443 intersection is not problematic, even considering the
fact that the intersection is located in a rural area. Sholtes further testified that installing
four-way stop signs at limited sight distance intersections would be generally problematic due to
the increased likelihood of rear-end collisions, and that installation of four-way stop signs at the
CR 1-SR 443 intersection would not be warranted under the MUTCD. According to Sholtes, the
55 MPH speed limit for the corridor of SR 443 near the intersection was appropriate, and any
changing road conditions or potential hazards in the road would be more appropriately addressed
by the use of warning signs rather than reducing the speed limit. Sholtes also testified that while
NYSDOT is not notified of every accident that occurs on SR 443, the Albertin report was the
only complaint NYSDOT has received about the CR1-SR 443 intersection.

Bradford Silver was called by claimant to testify as an accident reconstruction expert. At
trial, the Court reserved on defendant's objection to Silver's qualifications to offer his opinions
as to the design of the roadway and whether the NYSDOT's decision to take no action following
its 1994 review and analysis of the CR 1-SR 443 intersection was reasonable. Silver recited his
extensive experience in the field of accident reconstruction, including teaching accident
reconstruction to law enforcement for the past 26 years and testifying on behalf of the State in
trials before the Court of Claims involving road design. Silver testified that road design is one of
many factors an accident reconstruction expert considers in reconstructing a motor vehicle
accident. Contrary to defense counsel's assertions, an accident reconstruction expert need not
possess an engineering degree or have a background in engineering to offer an opinion as to how
road design may have been a factor in a highway accident and whether the design of the road was
safe, provided that the expert possesses the required training, education, knowledge and prior
experience in looking at the role of road design in the cause of accidents. Considering Silver's
extensive experience in accident reconstruction, a field in which road design is an integral
component, the Court determines that Silver may offer an opinion as to whether road design was
a factor in the accident that is the subject of this claim. Further, as an accident reconstruction
expert who reviews many factors in determining the causes of accidents, Silver is qualified to
assess whether NYSDOT's decision to take no action with regard to the CR 1-SR 443
intersection was reasonable in light of the information available to them. Accordingly,
defendant's objections to Silver's qualification to give expert testimony regarding road design are
overruled.

Silver reviewed the EBT transcripts of witnesses in connection with this case (including
Kodra), visited the CR 1-SR 443 intersection to observe and take measurements, and reviewed
the accident history for the intersection. He testified that the limited line of sight - or in his
words "sight distance" - between vehicles on CR 1 and eastbound vehicles on SR 443 reduces
the time drivers have to perceive, react and take action with regard to vehicles entering SR 443
from CR 1. According to Silver, a vehicle traveling easterly on SR 443 at 55 MPH at a point 220
feet from the intersection- i.e. at the hill crest- would have difficulty stopping before reaching
the intersection, while a vehicle traveling at 45 MPH at that same point would have sufficient
time to stop. Silver testified that the accident history for the CR 1-SR 443 intersection showed
that 83% of accidents in the intersection involved a vehicle traveling eastbound on SR 443, and
that 55% of the collisions involved a northbound or southbound vehicle on CR 1 entering the
intersection coming into conflict with SR 443 eastbound vehicles. While conceding that there
was a low accident rate at the CR 1-SR 443 intersection, Silver believes that the accident history
data reveals a problem with eastbound traffic coming into conflict with drivers entering the
intersection from CR 1.

It was Silver's opinion that the CR 1-SR 443 intersection was not safe as designed.
Silver opined that the limited line of sight for eastbound vehicles on SR 443 caused by the hill
crest combined with the 55 MPH speed limit on SR 443 provided eastbound drivers with too
little time to perceive, react and take evasive action with regard to vehicles entering the
intersection from CR 1. Silver believes that the accident history data supports his opinion that
these factors result in a disproportionate number of accidents involving eastbound SR 443
motorists. Silver also opined that the warning signs on SR 443 before the intersection were
ineffective in enhancing drivers' awareness of the upcoming intersection. It was Silver's further
opinion that NYSDOT's decision to take no action with regard to the CR 1-SR 443 intersection
was not reasonable. According to Silver, this intersection did not "fit the mold" (T:199) because
a disproportionate number of accidents at the intersection involved eastbound traffic, and thus
NYSDOT should have looked beyond the MUTCD in devising a solution to the accident
problem. Silver suggested that a four-way flashing stop light with a strobe to warn eastbound
motorists on SR 443 could have made this intersection safer for motorists.

DISCUSSION

The State owes to the public a nondelegable duty to design, construct and maintain its
roadways in a reasonably safe condition taking into account such factors as traffic conditions
apprehended, terrain encountered and fiscal practicality (seeFriedman v State of New York, 67
NY2d 271, 283 [1986]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). In the field of
highway design and planning, the State is accorded qualified immunity for its discretionary
decision-making relating to highway planning (Weiss v Fote, 7 NY2d 579, 584-588 [1960];
Friedman v State of New York, supra at 283). "Once the State is made aware of a dangerous
traffic condition it must undertake reasonable study thereof with an eye toward alleviating the
danger" (id. at 284). Liability cannot be found against the State for a traffic planning decision
unless it is demonstrated that "its study of a traffic condition is plainly inadequate or there is no
reasonable basis for its traffic plan" (id.).

Claimants contend that defendant knew that the CR 1-SR 443 intersection was dangerous,
that reasonable options to increase the safety of the intersection existed, and that defendant's
determination to take no action with regard to the intersection lacked a reasonable basis.
Defendant contends that the State's design and planning decisions are subject to qualified
immunity, and in the alternative, that the design of the CR 1-SR 443 was not the proximate cause
of claimants' accident. The Court will first turn to the issue of whether defendant is entitled to
qualified immunity for its design and planning decision relative to the CR 1-SR 443 intersection.

The evidence at trial would not support a finding that the 1994 NYSDOT review and
study of the CR 1-SR 443 intersection was "plainly inadequate," and claimants do not argue
otherwise. The evidence demonstrates that first, NYSDOT conducted a site visit to observe the
intersection and its signing and take measurements of sight distances. Second, NYSDOT
reviewed the accident history data for the intersection. Finally, NYSDOT analyzed all of the data
and came to the conclusions that there was no accident problem at the intersection and that the
warning signs on SR 443 were in conformity with the MUTCD. Thus, defendant's review and
analysis of the intersection was not plainly inadequate. Further, there is no argument made or
evidence presented that there were changes at this intersection after 1994 and prior to claimants'
accident such that defendant may have breached a duty to reevaluate the intersection after 1994
(cf.Atkinson v County of Oneida, 77 AD2d 257 [4th Dept 1980] revd on other grounds 59 NY2d
840 [1983]).

Claimants argue that NYSDOT's plan to take no action after its 1994 review of the
CR 1-SR 443 intersection lacked a reasonable basis. They contend that the signage that
defendant determined to be in compliance with the MUTCD - specifically the curve sign and the
advisory 45 MPH sign - were addressed to the curve that ended at the crest of the hill prior to the
intersection and were ineffectual in raising operator awareness of the intersection. They further
contend that the intersection warning sign was "quite some distance back" (Claimant's Brief, at
10) from the intersection and did not warn of a "blind" intersection (id.). Claimants further assert
that defendant did not adequately consider the limited line of sight, and it failed to account for
the fact that the MUTCD cannot address all possible hazardous conditions.

As noted above, claimants' expert, Silver, opined that the roadway in the vicinity of the
intersection was not safe as designed because the limited sight distance caused by the hill crest
combined with the 55 MPH speed limit on eastbound SR 443 gave drivers too little time to react
to vehicles in the intersection, and the accident history indicated a disproportionate number of
accidents involving vehicles traveling in the eastbound direction. Silver further believes that the
NYSDOT decision made in 1994 to take no action was unreasonable, as the MUTCD merely
provides guidance and NYSDOT should have looked beyond the MUTCD to address the
problems with this particular intersection. However, Reed Sholtes, Supervisor of NYSDOT's
Traffic Operations Section, believed that the 55 MPH speed limit on SR 443 was appropriately
addressed by the warning signs that were placed in the area of this intersection. He did not view
the accident history for the intersection as problematic, and he testified that alternative traffic
control devices for this intersection, such as a four-way stop sign, were not warranted by the
MUTCD. Although claimants argue that defendant failed to account for the limited sight
distance at the intersection, that contention is not borne out by the evidence at trial, which
demonstrated that defendant's 1994 study considered the fact that the combination of the hill, the
curve, and the embankment to the west of the intersection "restricts the sight distance available"
(Claimant's Exhibit 34, p. 2). In sum, the evidence reveals Silver and Sholtes disagree over
whether the warning signs adequately addressed the limited sight distance and the conditions of
the intersection. Inasmuch as "something more than a mere choice between conflicting opinions
of experts is required before the State or one of its subdivisions may be charged with a failure to
discharge its duty to plan highways for the safety of the traveling public" (Weiss, 7 NY2d at
588), the evidence does not preponderate in favor of a finding that the State's decision to take no
action after the 1994 study lacked a reasonable basis.

Claimants' argument that there were reasonable alternatives to warning signs, such as a
four-way flashing stop light to warn eastbound SR 443 motorists of the intersection, does not
necessarily mean that defendant's determination to continue to utilize the warning signs was not
reasonable. The existence of alternatives to the warning signs, in and of itself, does not serve as
a basis of liability. "To be sure, any public roadway, no matter how careful its design and
construction, can be made safer" (Tomassi, 46 NY2d at 97), but the State may not be held liable
for failing to provide more complete protection (seeSchwartz v New York State Thruway Auth.,
61 NY2d 955, 957 [1984]; Lansing v State of New York, UID #2007-040-017, Claim No.
108614, Motion No. M-72761, McCarthy, J. [Apr. 4, 2007]; Hannon v State of New York, UID
#2003-015-576, Claim No. 102289, Collins, J. [Apr. 29, 2003]).

Accordingly, the Court finds that defendant is entitled to qualified immunity for its design
and planning of the CR 1-SR 443 intersection, and liability will not lie against it.

Even assuming, however, that defendant was not entitled to qualified immunity,
claimants have failed to prove that the design of the intersection was the proximate cause of this
accident. Claimant testified that when he stopped at the stop sign he could not see oncoming
traffic, so he pulled up to the stop bar and looked left, right and left again before proceeding into
the intersection but that he did not see Kodra's vehicle until after his wife yelled a warning and
just before the collision. Despite the evidence that there was a limited sight distance of 250 feet,
however, there was no evidence that the design of the roadway would render an eastbound
vehicle on SR 443 virtually unseeable to a vehicle stopped at the stop bar on northbound CR 1,
nor was there any evidence of an obstruction at or near the intersection that would have
prevented Kodra's vehicle from being seen until it was nearly upon claimants' vehicle.
Moreover, Kodra's EBT testimony that he initially perceived claimants' vehicle before it rolled
to the stop bar indicates that there was a clear line of sight between the vehicles. Further, Kodra
testified at his EBT that he was traveling approximately 45 to 47 MPH on SR 443, and
claimants' expert, Silver, testified that a vehicle traveling at 45 MPH at the hill crest would have
adequate time to perceive, react and stop to avoid hitting a vehicle in the intersection. Thus, the
evidence presented by claimants reveals that Kodra was traveling at a speed that would have
enabled him to avoid hitting claimants' vehicle and yet, he did not. Therefore, the preponderance
of claimants' evidence indicates that this unfortunate accident was proximately caused by vehicle
operator error, and not by any inadequate signing before the intersection or the design of SR 443
west of the intersection.

CONCLUSION

It is the conclusion of this Court that defendant is not liable to claimants for their injuries.
The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any
motions or objections not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.

April 21, 2010

Albany, New York

W. BROOKS DeBOW

Judge of the Court of Claims

1. Unless otherwise noted, the term "claimant" in this decision shall refer to the driver, Arthur Merklen.

2. "Sight distance" measures the distance from which one can see an approaching vehicle. The sight distance
for a vehicle stopped on a side road is measured at a point 12 feet back from the intersecting road, at a height of 42
inches above the pavement surface, to the last point where one can see an oncoming vehicle on the intersecting road.

3. The warning signs are yellow diamond-shaped signs that have black lettering or symbols on them, and are
designed to warn motorists of a different road condition or potential hazard.

5. The snowmobile crossing warning sign, seesupra, was erected sometime after November 15, 2005 and
before the date of the accident (see Claimant's Exhibit 32).

6. The MUTCD provides traffic design engineers with all of the traffic control signs that may be used along a
highway, along with criteria for when and where the signs are warranted.

7. Although there was testimony at trial that there were seven accidents over that time frame, the Court's
review of the Accident Verbal Description Report for this intersection for the 10-year time frame, received into
evidence as Claimant's Exhibit 31, indicates that there were six accidents occurring on the following dates: (1)
September 11, 1998, (2) October 22, 2001, (3) January 10, 2003, (4) November 14, 2003, (5) August 1, 2006, and
(6) January 27, 2007.

8. The NYSDOT Traffic Operations Section is the entity within NYSDOT that is responsible for reviewing
traffic conditions and issues involving road signs and pavement markings to improve motorist safety.